Tampa Bay Criminal Defense Lawyer Blog

By now, the whole country has heard about the Trayvon Martin shooting. As of this writing, the facts are still being sorted out and the accused shooter, George Zimmerman, has yet to be arrested. However, there has been much outrage and blame directed towards Florida's "Stand Your Ground" law. The real question remains...does this law even apply to the facts as we know them?

F.S. §776.013(3) - Florida's "Stand Your Ground" Law

"A person who is not engaged in an unlawful activity, and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony".

As I am a criminal defense lawyer, I have been recently asked to explain Florida's so-called "Stand Your Ground" law. To explain how we got here, we first need to know where we have been. That takes us to Florida "BSYGL" or "Before Stand Your Ground Law...

Before the 2005 passing of Florida's "Stand Your Ground", a person could only use non-deadly force to defend against the imminent use of unlawful non-deadly force. The only time deadly force was authorized was to defend you or another against immediate deadly force/ great bodily harm. The use of deadly force was also allowed to stop the commission of a forcible felony.

A previous law, the so-called "Castle Doctrine" provided that a person had no duty to retreat prior to using deadly force against an intruder only if you were in one's home or workplace. You would still need a reasonable belief that deadly force was necessary to defend against great bodily harm, deadly force, or the commission of a forcible felony (such as a robbery or sexual assault). Unlike the later "Stand Your Ground" law, you had a "duty to retreat" prior to using deadly force.

Florida " ASYGL" or "After Stand Your Ground Law"

This "Stand Your Ground" Law introduced two (2) presumptions that would favor a criminal defendant who is making a self-defense claim:

1.The presumption that the defendant had a reasonable fear that deadly force was necessary; and
2.The presumption that the intruder intended to commit an unlawful act involving force or violence.

These two presumptions protect the defendant from both civil and criminal prosecution for any unlawful use of deadly or non-deadly force in self-defense. Additionally, the defendant/gun owner has no duty to retreat, regardless of where he is attacked, as long as he is in a location he is lawfully entitled to be when the danger occurs.

Florida's "Stand Your Ground" Law acts as a "presumption of innocence" from prosecution, as opposed to an affirmative defense that you would need to assert in Trial (after being arrested and charged by the State of Florida).

So the question remains...Is this "Stand Your Ground" law in any way responsible or encouraged the killing of Trayvon Martin? Part Two of this blog will talk about both the potential crimes that the shooter may be charged with as well as if this law applies...

Continue reading "Florida "Stand Your Ground" Law and Trayvon Martin, Part One" »

A former Rutgers student, after jury trial, has been convicted of anti-gay hate crimes related to invasion of privacy, tampering with evidence and a host of other related crimes. The ex-student faces 10 years in prison based upon his conviction as reported by the LA Times.

The Florida Legislator has deemed many violent crimes specifically targeting a class of individuals as hate crimes. Hate crimes are defines Federally under the 1968 Civil Rights Act, 18 U.S.C. § 245, which establishes a number of criminal penalties for the use of force or intimidation to prevent the free exercise of civil rights on the basis of race, color, religion or national origin. The Act provides penalties for whoever, "by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with" another (1) "because of" that person's "race, color, religion or national origin. Florida statutes mirror the Federal law: if a crime is deemed as a "hate crime" prosecutors can seek enhanced penalties against the person accused of such acts.

This brings up many important questions regarding race and sexual orientation in the modern era? Aren't all crimes of violence in one way another motivated by an evil intent? In a modern society, should we still inquire about someone sexual orientation or skin color? Do certain members of society need "extra" protection under the law? Are we imposing reverse discrimination to those individuals not in a protected class?

Let's take a closer look at the concept of hate crimes. For example, if two persons of the same race get into a fight and one commits a battery on the other, presumably there is no "hate crime" and the person who allegedly committed the battery would not be subject to enhanced penalties. However, if we alter the hypothetical and the victim of the battery is in a protected class being gay or African American then the same accused could potentially receive a harsher penalty. Is this fair? Presumably both individuals are in a fight and both individual presumably "hate" each other at that moment. Should one individual receive a harsher penalty based upon his or her skin color?

On the other hand, I think society would agree that committing a crime or discriminating toward an individual based upon their race, color, religion, sexual orientation, or nation origin is egregious. Due to the current laws on the books, Legislators feel that those members in the protected class need protection. An important question however is how long does a specific class need "protection"? At what point to we become a color blind society and every individual is treated the same regardless of race and sexual orientation? All these questions are something to think about and society along with the Florida Legislator need to be able to adapt to the changing times of society. Many classes that needed protection in the past may be more mainstream and no longer need or desire the extra protection. The more individuals that are treated differently than others the greater the potential for discrimination.

Hate crimes are based upon America's history of past injustices. At what point are those injustices rectified and America can treat all citizens equally? Only time will answer all the questions. As for now, individuals targeting protected classes to bully or intimidate them, like the former Rutgers student, will face enhanced penalties for their actions. Everyone can agree targeting someone because they are different than the majority is egregious. The only question is, at what point do we determine that all crimes against our citizens are equally egregious?

Continue reading "Florida Hate Crimes: Are they a step forward or a step back?" »

A DUI checkpoint put in place on Friday night nabbed almost two dozen arrests in Clearwater, per the Pinellas County Sheriff's Office. Per the Tampa Bay Times website, 385 cars were diverted along U.S. 19 at the checkpoint. Ironically, out of the almost two dozen arrests, only one was for DUI , the other arrests were ranging from traffic citations to drug possession.

As a criminal defense attorney, I often get asked questions about the law and specific situations. One series of questions that always seems to come up include checkpoints and their legality. The two main questions I get are as follows:"Are checkpoints legal" and "Can I only get busted for a DUI"?

As to the first question, "Are checkpoints legal"?, the answer is a resounding "maybe"! The Supreme Court has ruled that checkpoints ARE constitutional if they follow certain rules. Most importantely, the cars in a checkpoint cannot be picked to be inspected at random. There needs to be a system in place to ensure that the vehicles at a checkpoint are pulled over in a process. For example, the police can pull over every 3rd car or every 17th vehicle at the checkpoint. The police can also pull over a car if the driver or driving pattern looks suspicious (for example, if a car is weaving at the checkpoint, the vehicle can be pulled over). The police CANNOT pull over a vehicle because of the driver's race, sex or physical appearance.

The second common question I receive, "Can the police at a checkpoint only arrest you for a DUI if you get arrested at a checkpoint" is much easier to answer. That is a resounding "NO"! If the police follow proper protocol in forming a DUI checkpoint, then any other contraband the police find can be used against you. The Clearwater DUI checkpoint in the story above demonstrates that. Out of the nearly two dozen arrests, all but one was for other criminal acts. The police also made arrests for illegal drugs, traffic violations and outstanding warrants.

Continue reading "DUI Checkpoint in Clearwater, Florida Results in Dozens of Arrests." »